# People v. Hillery > California Supreme Court · May 3, 1965 · 62 Cal. 2d 692 URL: https://www.frixlaw.com/law-library/cases/9855212 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. BOOKER T. HILLERY, JR., Defendant and Appellant - **Court:** California Supreme Court - **Decided:** May 3, 1965 - **Citations:** 62 Cal. 2d 692; 44 Cal. Rptr. 30; 401 P.2d 382; 1965 Cal. LEXIS 289 - **Precedential status:** Published - **Opinion:** Concurring in part by Schauer - **Judges:** Tobriner, McComb - **Cited by:** 268 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9855212 ## Opinion text *714 SCHAUER, J. * , Concurring and Dissenting. I concur generally in the opinion insofar as it relates to the issue of guilt. I do not agree that the trial court erred in admitting in evidence statements made by defendant prior to the trial. Such statements were properly admitted because (1) there is no showing that they were coerced; (2) they appear to have been voluntarily made; (3) they purported to be exculpatory as to the crime for which defendant has been convicted and, hence, intended to benefit him. Furthermore, assuming for the purposes of this decision that there was error in admitting the statements, I concur in the majority’s holding that the receipt in evidence of those statements does not support a finding or conclusion by us “after an examination of the entire cause, including the evidence, . . . that the error complained of has resulted in a miscarriage of justice. ’ ’ However, I must challenge the language of the majority as avoiding, rather than meeting, the constitutional issue on the penalty phase of their opinion. On this aspect of the case they declare: “ [W]e find that the rendition of instructions identical to those condemned in People v. Morse (1964) 60 Cal.2d 631 [ 36 Cal.Rptr. 201 , 388 P.2d 33 ], coupled with the presentation of certain arguments to the jury necessarily worked prejudicial error. (People v. Hines (1964) 61 Cal.2d 164 [ 37 Cal.Rptr. 622 , 390 P.2d 398 ]).” The opinion adds “We have held the above errors in the penalty trial to be necessarily prejudicial,” and again cites the Hines case. Whether the admission of any particular item of evidence or the giving of any certain instruction, or permitting a certain argument, did or did not “work prejudice” or “prejudicial error” is not a test upon which we may resolve the issue as to affirmance or reversal of a judgment. Every item of evidence introduced in the trial and every instruction given or argument made may have tended to “prejudice” the defendant; i.e., to lend some support for the ultimate verdict. Our Constitution (section 4%, clarifying and limiting section 4 of article VI, as made clear by the circumstances preceding and surrounding its adoption on October 10, 1911, in its then form applicable only to criminal ease appeals) peremptorily forbids this court to reverse for mere error “as to any matter of pleading, or ... procedure,” whether prejudicial or otherwise, “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that *715 the error complained of has resulted in a miscarriage of justice.’’ (Italics added.) Manifestly, no error would be complained of unless it were deemed to be prejudicial. But being prejudicial is not the test for the serious business of reversal of a judgment. Error, prejudicial or otherwise, is in itself inconsequential and must be disregarded unless “after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” Surely it is not seriously disputed that the last quoted language relates to “the entire cause including the evidence ’ ’ in the case which is under review, not to any other case which may have been previously decided. The citations of the rulings in Morse and Hines add nothing to the “entire cause including the evidence” now before us. What the majority found in Hines or Morse is wholly immaterial to the “entire cause including the evidence” upon which alone the ease now here must be decided. Assuming for the purposes of this concurring and dissenting opinion that it was error to admit in evidence certain of defendant’s statements said to be obnoxious to Escobedo v. Illinois (1964) 378 U.S. 478 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ], and/or People v. Dorado (1965) ante, p. 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], I concur in the holding that 1 ‘ Since there is no reasonable probability that the jury would have reached a result more favorable to defendant if the statements had been excluded, we conclude that the judgment as to guilt must be affirmed. (Cal. Const., art. VI, §4%; People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ].) ” Upon precisely the same compelling constitutional mandate and the same decision construing it, supported further by People v. Morse (1964) supra, 60 Cal.2d 631, 652-653 , I am regretfully compelled to dissent from what appears to me to be an incongruity in an otherwise scholarly and generally excellent opinion. In all the majority opinion there is no suggestion that there is any doubt whatsoever as to the guilt of this defendant, or the justness of the verdict. How then could the majority solemnly hold that the verdict in this case works a miscarriage of justice? Absent that holding, the reversal works a miscarriage of justice. All the facts, all the law, all of the reasons which overwhelmingly support affirmance of the finding of guilt, likewise—and even more imperatively for the cause of justice *716 —demand affirmance of the judgment imposing the most effective deterrent known to our law: the death penalty. And prompt execution of that penalty, without further delay-sapping of its deterrent effect on potentially murder-capable but still vacillating persons of the type of this defendant, is far more important to those persons themselves as well as to other 15-year-old girls—and their families—and to law enforcement in California—than is any proffered basis for the strained reversal, which can benefit—if the word be loosely used—only this defendant and others who have committed or are contemplating the pros and eons of similar crimes. The judgment should be affirmed in its entirety. Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9855212. Public record. Not legal advice.